re lawyers, PQE, maternity leaves and discrimination

[carbolicsmokeball]

Do any employment lawyers (or others) know the answer to this:

If a lawyer qualifies e.g. 5 years ago, but takes up 3 years of that with 3 maternity leaves of one year each, what is correct here and what is discriminatory?:

(a) saying that that lawyer is 5yr PQE or 2yr PQE

(b) paying the lawyer as a 5 yr PQE lawyer, or as a 2yr

(c) charging out the lawyer to clients as a 5 yr PQE or a 2yr

(d) promoting the lawyer to senior associate (mostly dependent on reaching 4yr PQE), on the basis that it would be discriminatory not to, or not promoting, on the basis that they are only viewed as 2yr PQE (all other assessment criteria aside)

(e) discussing all of the above between members of the partnership and HR (so at least everyone is in agreement and knows the score), or not discussing (on the basis that even discussing it might have some sort of discriminatory element)

(f) judging the lawyer at annual appraisal time as a 5yr PQE lawyer, or as a 2yr PQE lawyer.

Probably other permutations but that should be enough for now!

If you can help - thank you!

Nothing wrong with discussing it (e). You don't discriminate just by wondering what the right thing to do is.

It's a tricky question. Most firms would treat you as 5 years PQE, but take into account actual active experience in appraisals. Then you'd have to meet the other criteria for promotion to senior associate, but wouldn't be barred based on qualification.

TBH it just shows to me the utter bloody outdated nature of PQE that it's so hard to sensibly fit around maternity leave.

that's the point isn't it - seems outdated to me too.

fwiw, I have experienced a combination of all of the above (slightly different fact pattern but the principle is the same) within the same workplace, so difficult to tell what the view / policy is even within the same dept. (e.g one partner thinks one thing, another one thinks another, and HR has a third view).. seems like there could be potential for subtle discrimination here but hard to pinpoint given that there is no fixed view. Just wondering if anyone else had discussed similar with an employment lawyer etc.

Would also seem to vary according to level of PQE at time of mat leaves - e.g. if you took 3 years' mat leave within your first 3 years PQE (i.e. had three dcs back to back over your first 3 years) surely you couldn't be viewed as having 3 years' exp on return as you would actually have none! On the other hand, if you had the same 3 years' mat leave, but were 10 yrs PQE - having taken the first at 4 yrs PQE, the second at 7 yrs PQE and the 3rd at 10 yrs, it is likely that you would just be viewed as 10yrs and the leaves would be less significant.

Would that be unfair?

I haven't discussed it with colleagues, but I am an employment lawyer if that helps!

I honestly don't think there is an answer. I totally agree that there seems to be the risk of discrimination, but equally it doesn't seem right to disregard maternity leave - because if you take it to the extremes in your example it makes no logical sense.

The problem (which I bang on about endlessly) is that the system is based around time and not skill sets. The whole thing would be resolved if you had an aptitude based system...

Ribena, do you think there is anything one can do with this problem? - not even sure myself where I am going with this, but is there any point (and I suspect not) in raising it at work (in fact I have done, several times, but informally), or, if it should ever come to that (through extension of what might be perceived as discrimination) taking to tribunal?

The very fact that different partners view this differently is tricky, and, from what I think might be the case, the leaves are indeed viewed differently dependent on level of PQE at time of leave and spacing of subsequent children. Also tricky is, as you say, treating as one thing for purposes of charging out to clients, while treating as another when assessing for promotion etc.

Most tricky, I would think, is that plenty of women would be fine with whatever view is taken, as it suits them (e.g. just one mat leave, get paid for PQE according to date of qualification, no real effect on exp as perhaps only took mat lve at 10yrs PQE so experienced enough for it not to matter really) .. so even if one person in said workplace might be treated in a discriminatory fashion, others might not be, therefore v difficult to prove sex discrimination if not affecting all mothers the same. right?

btw, not saying there is discrimination here, just saying its a tricky area that is difficult to understand as there seems to be no general policy or understanding of this, within the workplace or within general legal understanding of the term 'PQE' and whether all that entails might be discriminatory or otherwise.

and btw thanks for your views and advice - v helpful!

Hhhm.

Well discrimination for these purposes is treating someone unfavourably because she has taken maternity leave (unlike other discrimination, there is no need for a comparator). So it depends really whether it is unfavourable. It doesn't need to treat a particular group less favourably (that's indirect discrimination in normal discrimination cases, but there are also some other complicated factors I won't go into) - so it doesn't matter per se if others are not disadvantaged.

The problem is that there are two equally sensible answers - it is not unfavourable because PQE is just a shorthand for level of experience and you don't gain experience if off. So just as you wouldn't pretend an employee had skills or competencies they didn't in a normal non-PQE profession, you don't pretend an employee has experience they don't. OR it is unfavourable because it measures that so inaccurately that it can only be seen as a measure of time served, for which you should not discount maternity leave.

If you accept the former argument, I see no problem treating different maternity leaves differently depending on how many and when they occur in a career. Arguably for the first few years it is a much more intense period of development.

That said, a firm should have a sensible and consistent policy, or they undermine their own arguments...

I'm not sure what can be done - aside for abolishing bloody archaic PQE. Oh, and chargeable hours and hourly billing whilst they are at it. Drives me bloody mad that being more efficient and getting out the door to your family gains you sodding nothing when people look at your figures .

I hear you

agreed - whole system needs an overhaul. Problem is, can't really do anything about inconsistencies as don't want to be seen as a troublemaker. Yet it is slightly annoying when you realise there are totally different ballparks you are supposed to be playing in (if the analogy makes sense) -it's late and I'm getting a bit too tired to talk sensibly now - as have just spend last few hours trying to up my billable..

I also think you have to factor in billable hours. If you are working crazy hours you are going to accumulate more experience than someone with a more manageable workload.

I no longer work in private practice but my career has definitely suffered from taking ML (I took one period of 10 months) and being a mother (I've never taken a day off to cover a sick child) but then I work in a particularly female unfriendly area of law.

so do I Mollie, and that's another complicating factor - not too much work around over the last 3-4 years due to unfavourable market conditions etc. so even less exp, compounded with maternity leaves - then again, at least that side of things can't exactly be discriminatory .. but then it is, because when there is less work, it obviously goes to those who haven't taken time out and who can be in the office at all times of day and night.

I suffered slightly but only till I found a way to speak up and got my salary bumped up again. But that was for 1 maternity leave of just under 6 months and they were paying me less than the ones a grade below which I felt was very insulting.

I did know another assistant who was counted as 1 year behind his PQE for salary, charge out rate etc. because he had to take off a year one year to do his army service (not English) so that would be a potential comparator.

If your charge out rate is less you might get more work...

another part of the problem tigger - chargeout rate is high, and won't be reduced, therefore reducing amount of work available.

Salary is in line with date of qualification, so no discrimination there (I think) but it's the more subtle areas that are proving challenging..

Basically, in all the 'obvious' ways, not discriminatory at all (e.g. salary) - the firm is not stupid! Point is, it's all the unspoken, unpublished, unproveable areas that are a little hazy, and not nec. in employee's favour. that's the difficulty - esp since no fixed view as to what this all (PQE) actually means in law.

interesting re the army service as a comparator - I wonder if the two are comparable.. (too tired to look this up now!)

When I instruct external lawyers I never choose on the basis of charge out rate. I choose someone suitable to do the job I need doing.

I suppose I meant more when a team is being put together internally. Agreed, when instructions come directly from clients charge-out rate seems to have little bearing.

At the firm I worked at when I went on mat leave with DC1, I was specifically told that I would I would not gain any PQE if I took 6mo or more of mat leave. It did rankle slightly as it meant I was suddenly a year below those who had been my peers but I could also see the logic, especially as they'd been pretty good to me during my pregnancy & kept me off the insane deals which were guaranteed to involve all-nighters, so I'd had a lot less experience over the 18 months compared to my colleagues. For me, it was irrelevant in many ways as I'd already reached the top of the bands so it didn't make any difference to pay, bonus etc and I still knew where I "sat" within the department in terms of seniority. Tbh, if you've moved firms a few times, I don't think PQE matters as much as you're judged by ability more & you may not tie into their bands perfectly anyway - at the firm I was at when I had DC1, I was effectively penalised 10mo PQE as I'm a March qualifier and they determined their bands on 1st Jan.
Nonetheless, its an interesting question.